Citation Nr: 1014744
Decision Date: 04/19/10 Archive Date: 04/30/10
DOCKET NO. 07-13 105 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUES
1. Entitlement to a rating in excess of 10 percent for
degenerative disc disease and spondylolithesis of the lumbar
spine.
2. Entitlement to an initial rating in excess of 20 percent
for radiculopathy right lower extremity (associated with
degenerative disc disease and spondylolithesis of the lumbar
spine.)
3. Entitlement to an initial rating in excess of 10 percent
for radiculopathy left lower extremity (associated with
degenerative disc disease and spondylolithesis of the lumbar
spine.)
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. Eckart, Counsel
INTRODUCTION
The Veteran served on active duty from October 1989 to
October 1993.
This case comes before the Board of Veterans' Appeals (Board)
from a rating decision of May 2005 from the Indianapolis,
Indiana Regional Office (RO) of the Department of Veterans
Affairs (VA), which denied an increased rating for the lumbar
spine disorder rated at 10 percent disabling.
While the appeal was pending, the RO in a January 2008
Decision Review Officer (DRO) decision granted service
connection for radiculopathy of the right lower extremity and
assigned an initial 20 percent rating and for radiculopathy
of the left lower extremity and assigned an initial 10
percent rating. This was granted as being associated with
the service-connected lumbar spine disorder, with the
effective date the date of the December 2004 increased rating
claim for the lumbar spine. As this grant of radiculopathy
stems directly from the increased rating issue for the lumbar
spine as associated symptomatology, the Board shall consider
it as part of the increased rating appeal, and has
characterized the issues accordingly. See AB v. Brown, 6
Vet. App. 35 (1993) (noting that, in a claim for an increased
disability rating, the claimant will generally be presumed to
be seeking the maximum benefit allowed by law and regulation
and it follows that such a claim remains in controversy where
less than the maximum benefit available is awarded).
FINDINGS OF FACT
1. The competent medical evidence shows the Veteran's
service-connected lumbosacral spine disorder, which includes
evidence of back pain, spasm and limitation of motion, is not
shown to result a combined limitation of motion of the
thoracolumbar spine of 120 degrees or less, nor is forward
flexion shown to be limited to between 30 degrees and 60
degrees, nor is it shown to cause abnormal contour or
guarding severe enough to affect his gait.
2. The Veteran did not have any incapacitating episodes
during a 12-month period.
3. Radiculopathy of the right lower extremity, with
subjective complaints of pain, tingling and numbness, and
with objective evidence of episodes of slight weakness and
numbness, but no evidence of atrophy, or persistent sensory
deficits, is equivalent to no more than moderate incomplete
paralysis of the sciatic nerve.
4. Radiculopathy of the left lower extremity, with
subjective complaints of pain, tingling and numbness, without
objective evidence of sensorineural deficits or weakness, is
equivalent to no more than mild incomplete paralysis of the
sciatic nerve.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 10 percent for a
degenerative disc disease and spondylolithesis of the lumbar
spine are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107
(West 2002 & Supp. 2009); 38 C.F.R. §§ 4.40, 4.45, 4.59,
4.71a, Diagnostic Codes 5239, 5243 (2009).
2. The criteria for an initial rating in excess of 20
percent for radiculopathy of the right lower extremity are
not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 &
Supp. 2009); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.124a,
Diagnostic Code 8520 (2009).
3. The criteria for an initial rating in excess of 10
percent for radiculopathy of the left lower extremity are not
met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 &
Supp. 2009); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.124a,
Diagnostic Code 8520 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to notify and assist
The VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103,
5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.
For claims pending before VA on or after May 30, 2008,
38 C.F.R. § 3.159 was recently amended to eliminate the
requirement that VA request that a claimant submit any
evidence in his or her possession that might substantiate the
claim. See 73 FR 23353 (Apr. 30, 2008). This notice must be
provided prior to an initial unfavorable decision on a claim
by the agency of original jurisdiction (AOJ). Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
In the present case, the Veteran's claim for an increased
rating for his lumbar spine condition was received in
December 2004. Prior to adjudicating this claim in May 2005,
a duty to assist letter addressing the increased rating claim
was sent in February 2005. Additional notice was also sent
in August 2007 and July 2008.
The Veteran was provided initial notice of the provisions of
the duty to assist as pertaining to entitlement to an
increased rating, which included notice of the requirements
to prevail on these types of claims and of his and VA's
respective duties. The duty to assist letter notified the
Veteran that VA would obtain all relevant evidence in the
custody of a federal department or agency. He was advised
that it was his responsibility to either send medical
treatment records from his private physician regarding
treatment, or to provide a properly executed release so that
VA could request the records for him. The Veteran was also
asked to advise VA if there were any other information or
evidence he considered relevant so that VA could help by
getting that evidence.
In Dingess, supra, the U.S. Court of Appeals for Veterans
Claims (Court) held that, upon receipt of an application for
a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating, or is
necessary to substantiate, each of the five elements of the
claim, including notice of what is required to establish
service connection and that a disability rating and an
effective date for the award of benefits will be assigned if
service connection is awarded. He received such notice in
the August 2007 letter. The July 2008 letter also provided
such notice and also detailed the criteria for entitlement to
an increased rating pursuant to Vazquez-Flores v. Peake, 22
Vet. App. 37 (2008), (vacated by Vazquez-Flores v. Shinseki,
2009 WL 2835434 (Fed. Cir.) Sept 4, 2009.) Thereafter the RO
readjudicated this matter in an August 2008 statement of the
case.
While the notices specifically addressed the increased rating
for lumbar spine disorder, and no separate duty to assist
notice was given to address the radiculopathy of the left and
right lower extremities, for which service connection was
granted by the DRO decision of January 2008, such grant was
for symptomatology that is part and parcel of the lumbar
spine disorder. Therefore the duty to assist notices for the
lumbar spine disorder also serve as proper notice for the
associated symptoms of radiculopathy and there is no need to
send a separate letter addressing the separate symptoms.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). Service
treatment records were previously obtained and associated
with the claims folder. Furthermore, VA and private medical
records were obtained and associated with the claims folder.
Assistance shall also include providing a medical examination
or obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim. 38
U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA examinations
conducted in May 2008 and December 2008, provided current
assessments of the Veteran's condition based not only on
examination of the Veteran, but also on review of the
records.
In summary, the duties imposed by 38 U.S.C.A. §§ 5103 and
5103A have been considered and satisfied. Through notices of
the RO, the claimant has been notified and made aware of the
evidence needed to substantiate his claim for higher
disability rating, the avenues through which he might obtain
such evidence, and the allocation of responsibilities between
himself and VA in obtaining such evidence. There is no
additional notice that should be provided, nor is there any
indication that there is additional existing evidence to
obtain or development required to create any additional
evidence to be considered in connection with the claim
decided on appeal. Consequently, any error in the sequence
of events or content of the notice is not shown to prejudice
the claimant or to have any effect on the appeal. Any such
error is deemed harmless and does not preclude appellate
consideration of the matter being decided, at this juncture.
See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006)
(rejecting the argument that the Board lacks authority to
consider harmless error). See also ATD Corp. v. Lydall,
Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).
II. Increased Rating-General Considerations and Factual
Background
Disability evaluations are determined by the application of a
schedule of ratings that is based on the average impairment
of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38
C.F.R., Part 4 (2009). Separate diagnostic codes identify
the various disabilities. 38 C.F.R. § 4.1 (2009) requires
that each disability be viewed in relation to its history and
that there be emphasis upon the limitation of activity
imposed by the disabling condition. 38 C.F.R. § 4.2 (2009)
requires that medical reports be interpreted in light of the
whole recorded history, and that each disability must be
considered from the point of view of the Veteran working or
seeking work. 38 C.F.R. § 4.7 (2009) provides that, where
there is a question as to which of two disability evaluations
shall be applied, the higher evaluation is to be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating is to
be assigned.
While the Veteran's entire history is reviewed when assigning
a disability evaluation, 38 C.F.R. § 4.1, where service
connection has already been established and an increase in
the disability rating is at issue, it is the present level of
disability that is of primary concern. Francisco v. Brown, 7
Vet. App. 55 (1994). The Court has held that in determining
the present level of a disability for any increased
evaluation claim, the Board must consider the application of
staged ratings. See Hart v. Mansfield, 21 Vet. App. 505
(2007). In other words, where the evidence contains factual
findings that demonstrate distinct time periods in which the
service-connected disability exhibited diverse symptoms
meeting the criteria for different ratings during the course
of the appeal, the assignment of staged ratings would be
necessary.
An evaluation of the level of disability present also
includes consideration of the functional impairment of the
Veteran's ability to engage in ordinary activities, including
employment. 38 C.F.R. § 4.10 (2009).
With respect to disabilities involving the musculoskeletal
system, the Court has emphasized that when assigning a
disability rating, it is necessary to consider functional
loss due to flare-ups, fatigability, incoordination, and pain
on movement. See DeLuca v. Brown, 8 Vet. App. 202, 206-7
(1995). The rating for an orthopedic disorder should reflect
functional limitation which is due to pain, supported by
adequate pathology, and evidenced by the visible behavior of
the claimant undertaking the motion. Weakness is also as
important as limitation of motion, and a part, which becomes
painful on use, must be regarded as seriously disabled. A
little used part of the musculoskeletal system may be
expected to show evidence of disuse, either through atrophy,
the condition of the skin, absence of normal callosity, or
the like. 38 C.F.R. § 4.40 (2009). The factors of
disability reside in reductions of their normal excursion of
movements in different planes. Instability of station,
disturbance of locomotion, and interference with sitting,
standing, and weight bearing are related considerations. 38
C.F.R. § 4.45 (2009). It is the intention of the VA Schedule
for Rating Disabilities (Rating Schedule) to recognize
actually painful, unstable, or malaligned joints, due to
healed injury, as entitled to at least the minimal
compensable rating for the joint. 38 C.F.R. § 4.59 (2009).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App 49, 55-57 (1990).
Service connection was granted for a lumbar spine disorder
classified as spondylolithesis by the RO in a July 1994
rating decision which assigned an initial 10 percent rating.
The Veteran filed his claim for an increased rating in
December 2004. The 10 percent rating has been confirmed and
continued in subsequent rating decisions including the May
2005 rating on appeal. The issue now includes consideration
of radiculopathy which was granted separately for both lower
extremities in a January 2008 rating decision, with the right
lower extremity rated as 20 percent disabling and the left
lower extremity rated as 20 percent disabling effective the
date of the December 2004 increased rating claim.
Among the pertinent evidence of record were the following. A
December 2004 record noted a history of spondylolithesis of
the lower back with reported symptoms of numbness and
tingling which he attributed to chronic back pain. He did
not require medications for this, but was aware of pain. He
was noted to have been recently transferred to a job that
required heavy lifting and twisting but so far he was
handling it well. Examination showed normal straight leg
raises and muscle strength. Reflexes were 1+ bilaterally and
equal. His low back may be mildly painful but there was
nothing serious. The assessment was bilateral lower
extremity neuropathy, probably due to spondylolithesis.
Diagnostic tests from the same month showed irregularity of
the superior endplate of L1 and grade I-II spondylolisthesis
at L5-S1 (shown on X-ray), and right foraminal stenosis at
L5-S1, Grade I lithsesis. There were diffuse degenerative
changes at L4-5 with disc bulge and diffuse facet arthropathy
(shown on MRI).
A January 2005 operative report revealed that he underwent
injections of epidurals under fluoroscopy for his right sided
lumbar spine lithsesis, with right sided sciatica and right
lumbar radiculopathy.
Also in January 2005 the Veteran underwent a psychiatric
consultation and was noted to have difficulty with low back
pain with some right sided sciatica. He had pain between
levels 4-8/10 across the lower and mid back with radiation
into the right foot and leg. He has not had any physical
therapy (PT) or electromyeographs (EMGs). MRI was noted to
show spondylolithesis with right paracentral disc bulge at
L5-S1. He reported discomfort in the low back and right
back. He said it was fairly intense at time. He denied
significant symptoms in the left lower extremity.
Examination showed him to have a slight limp with slight
weakness with toe walking on the right. He had 1+ reflex of
the right ankle compared to 2+ on the left. Straight leg
raise was mildly positive on the right and negative on the
left. His calves were supple. He had no sensory deficit or
atrophy. His forward range (flexion) was 80 degrees,
extension was 20 degrees and side bending was 15 degrees.
There were no step off deformities or pelvic obliquity
identified. His motor strength was otherwise 5/5. Knees
were supple without any effusion or instability. The
impression was right sided sciatica, spondylolithesis, Grade
I, and degenerative disc disease (DDD). The examiner
recommended physical therapy and traction. The examiner also
advised fluoroscopy and right L5-S1 epidurals, as well as
electromyelogram and nerve conduction studies (EMG/NCS).
An April 2005 VA examination noted complaints of low back
pain which flares up when he is bending or lifting. He
currently worked as a real estate agent and part time work at
an automotive plant. His activities of daily living were not
affected by his back condition. He could drive and dress.
Recreation was affected and he could not bend and lift due to
pain. During the past 12 months there were no incapacitating
episodes or hospitalizations for his back. He was not taking
pain medications regularity. He had a history of PT and
epidurals for his back pain in February 2005. There was no
bowel or bladder involvement of the back condition. He used
no brace or orthotics and his gait was normal without
assistive devices. Examination revealed normal spine
configuration with pain on palpation and painful, mild
limitation of motion. He had 80 degrees flexion and 20
degrees extension. Lateral bending and rotation in both
directions revealed 30 degrees. (Combined range of motion
was 220 degrees). He had pain that radiated to both
sacroiliac (S1) joints. There was no paravertebral muscle
spasm. Deep tendon reflexes were 1+ and equal bilaterally.
Straight leg raise was negative from sitting and lying
positions. Pinprick test showed normal skin sensitivity and
he could tiptoe and stay on his heels (i.e. heel-toe walk).
His gait was normal with no assistive device. He did report
increased pain and easy fatigability and lack of endurance on
repetitive motion, which resulted in about 5 degrees loss of
motion. X-ray and MRI findings were reviewed and showed DDD,
Grade I spondylolithesis at L5-S1 and diffuse facet
arthropathy. The diagnosis was sprain of the lumbosacral
spine, chronic pain lumbosacral spine, DDD and
spondylolithesis, Grade I, L5-S1.
VA treatment records from 2005 to 2007 included an August
2005 new PT appointment, with the past medical history
significant for chronic back pain (CBP), DDD,
spondylolithesis, facet arthropathy, status post epidural
treatment of L5-S1. No significant findings regarding the
back were shown on examination and the assessment was the
same as the past medical history. In February 2006 he
complained of increased numbness and tingling of both lower
extremities, from the knee down to the feet. This was
clearly positional but the degree of numbness and tingling
was enough to potentially cause the foot to fall asleep
resulting in falls when he stands if he is not careful. He
also reported pain and weakness of the knees and legs, right
greater than left. Examination revealed questionable
straight leg raise bilaterally with deep tendon reflexes 2+
for the knees and ankles. Strength was 5/5 in both lower
extremities and sensation to monofilament was equivocally
different in the lower extremities. The assessment remained
the same as that given in August 2005, with the addition of
bilateral L5-S1 radiculopathy. Plans included a trial of
prednisone taper and trial of Nortriptyline if he so desired.
In an April 2006 notice of disagreement and in an April 2007
substantive appeal, the Veteran noted that he experienced
tingling and numbness of the legs, flare-up pain other than
after exertion, and an abnormal gait. He also noted that he
had been prescribed medication for pain.
On follow-up in November 2006 for other medical problems, he
was noted to have a past medical history that included
chronic low back pain. Neurological examination was grossly
normal. He was given the same assessment for his low back as
was given in February 2006. The rest of the 2006 records
addressed other medical problems but did note his history of
chronic low back pain and spondylolithesis. A December 2006
pain assessment did include the low back which was reportedly
bad enough to affect his posture. He was unable to stand
straight and had numbness in the right leg, now spreading to
his left side. He was receiving treatment for the pain.
A February 2007 psychiatric examination included a
neurological examination which noted that his motor findings
were symmetrical and he had normal muscle tone and bulk, with
symmetric reflexes and full strength of all extremities. He
also had intact sensation of soft touch distally in all
extremities. His gait was steady, and he was noted to have
no unusual findings on walking.
The report of a May 2007 VA spine examination noted
complaints of pain symptoms of 4/10-sometimes up to 7/10 when
he wakes in the morning. His pain however subsided with
normal morning activities, and he did not have it during most
of the day or at night when sleeping. He was not awakened by
pain. He had pain in his paraspinal area of the lower lumbar
spine. There was no improvement by stretching. The pain was
significantly worse with heavy lifting, jogging or sports.
It became 8/10 and could last for several days. His flare-
ups happened about 8-10 times a year, and per his report were
accompanied by muscle spasms. They did not keep him from
working, with his jobs were said not to be physical. (His
jobs included being a real estate agent, and part time work
in an auto plant.) He had no hospitalizations for his back.
Other complaints included new onset numbness and tingling in
the legs for approximately one year. This was in the lateral
calf and cup part of the foot and was merely numbness and
tingling sensation that was stable for approximately 6
months. His right leg was generally affected, but the left
leg was also occasionally. This happened during sitting and
when he first stands up. Occasionally the newer symptoms go
into an L3 distribution. He used no assistive devices and
had no associative symptoms like weight loss, fever,
dizziness, visual disturbances or significant weakness.
Examination revealed 90 degrees flexion and 30 degrees
extension with pain at the last 15 degrees. The rest of the
motions (lateral flexion, rotation) in both directions were
all 30 degrees with no significant pain. (Combined range of
motion was 240 degrees, but when factoring pain at 15 degrees
on extension was actually 225 degrees). His lumbar spine and
paravertebral areas were nontender to palpation. He had 5/5
strength throughout both lower extremities. He had normal
sensation and was intact to pinprick in both lower
extremities. There was no fatigability on repeated motion.
Diagnostic tests from the past were reviewed which showed
degenerative lumbosacral spinal disease with Grade 1
spondylolithesis. The current diagnosis was sprain of the
lumbosacral spine, chronic pain of the lumbosacral spine with
degenerative joint disease and spondylolithesis of L5-S1.
The report of a December 2007 VA examination for peripheral
nerves noted that the Veteran has complaints of low back pain
with increased bending and lifting. There were no flareups
of pain, only constant pain, which was sometimes of low or
high intensity. On current examination it was at a 6/10
level. He worked in quality control and his activities of
daily living were not affected. He could drive, dress
himself and otherwise care for himself. In the past 1-2
years he had complaints of low back pain radiating down both
lower extremities with paresthesias, tingling and numbness
mainly on the right. He had a history of epidural blocks and
PT in February 2005, which did not result in much
improvement. There were no bowel or bladder symptoms related
to his back. He used no orthotics or bracing. His gait was
normal without assistive devices. He was able to work his
job in quality control. He reported no incapacitating
episodes or hospitalizations in the past 12 months due to his
back condition.
Examination revealed pain on palpation at L5-S1 with painful
and limited motion. He had 75 degrees flexion and 15 degrees
extension. He had 30 degrees for lateral bending and
rotation in all directions. (Combined range of motion was
210 degrees). He had pain radiating to the S1 joints on
exam. This was more intense on the right than left, and he
had complaints of paresthesias of the right lower extremity.
There was no numbness during this examination of the left
lower extremity. There were complaints of easy fatigability,
lack of endurance and decrease in flexion and extension of 5
or more degrees on repetitive motion. There also was mild
spasm of the paravertebral muscles of the lumbar spine.
Findings from diagnostic tests such as X-ray and MRI were
recited. The final diagnosis was strain of the lumbosacral
spine, chronic pain of the lumbosacral spine, DDD,
spondylolithesis Grade I of the L5-S1 level and radiculopathy
of the right leg-refer to neurological exam.
The neurological examination (peripheral nerve) noted that
cranial nerves were grossly normal. He was noted to have
chronic lumbosacral pain with paresthesias and numbness of
the right lower extremity and some paresthesias and tingling
of the left lower extremity. Deep tendon reflexes were 1+
and equal bilaterally. Straight leg raise was negative from
sitting and lying positions. Pinprick test showed numbness
of the skin of the right heel and S1 dermatomes. Babinski
was negative bilaterally. He was able to heel-toe walk.
MRI findings were again recited and it was noted that the
findings of DDD, Grade I spondylolithesis and right foraminal
stenosis at L5-S1 explained the findings of numbness at the
S1 dermatome. He had symptoms of radiculitis on the right of
mild to moderate severity. The diagnosis was strain of the
lumbar spine, DDD, Grade I spondylolithesis and radiculitis
in the right. The examiner opined that it was at least as
likely that the Veteran's current condition of pain radiating
down the right lower extremity and numbness to S1 dermatome
was related to his low back condition with right foraminal
stenosis at L5-S1. His radiculitis was the result of his low
back condition. The radiculitis during this examination was
mild to moderate in severity from complaints of paresthesias
and tingling of the left lower extremity. There were no
symptoms of radiculitis on the left on today's examination.
VA treatment records from 2007 primarily addressed
psychiatric complaints and neck stiffness. Among the
records, a February 2007 record addressing neck complaints
noted that he tried a back brace recently. The rest of the
examination addressed the neck complaints. However a motor
examination was normal and sensory examination was intact to
soft touch distally in all extremities. His gait was steady,
with no unusual findings.
A. Lumbar Spine--Analysis
The Veteran has been rated 10 percent disabling for his back
disorder which is classified as degenerative disc disease and
spondylolithesis and the RO has rated this under 38 C.F.R.
§ 4.71 a Diagnostic Code 5239-5243, for spondylolithesis and
intervertebral disc syndrome. The Board will consider all
pertinent Diagnostic Codes.
Intervertebral disc syndrome should be evaluated either under
the General Rating Formula for Diseases and Injuries of the
Spine or under the Formula for Rating Intervertebral Disc
Syndrome Based on Incapacitating Episodes, whichever method
results in the higher evaluation when all disabilities are
combined under § 4.25. Lumbar or cervical strain is
evaluated under the General Rating Formula.
Under the General Rating Formula, forward flexion of the
thoracolumbar spine greater than 60 degrees but not greater
than 85 degrees; or, forward flexion of the cervical spine
greater than 30 degrees but not greater than 40 degrees; or
combined range of motion of the thoracolumbar spine greater
than 120 degrees but not greater than 235 degrees; or,
combined range of motion of the cervical spine greater than
170 degrees but not greater than 335 degrees; or, muscle
spasm, guarding, or localized tenderness not resulting in
abnormal gait or abnormal spinal contour; or, vertebral body
fracture with loss of 50 percent or more of height warrants a
10 percent disability rating. Forward flexion of the
thoracolumbar spine greater than 30 degrees but not greater
than 60 degrees; or, forward flexion of the cervical spine
greater than 15 degrees but not greater than 30 degrees; or,
the combined range of motion of the thoracolumbar spine not
greater than 120 degrees; or, the combined range of motion of
the cervical spine not greater than 170 degrees; or, muscle
spasm or guarding severe enough to result in an abnormal gait
or abnormal spinal contour such as scoliosis, reversed
lordosis, or abnormal kyphosis warrants a 20 percent
disability rating. Forward flexion of the cervical spine 15
degrees or less; or favorable ankylosis of the entire
cervical spine warrants a 30 percent disability rating.
Unfavorable ankylosis of the entire cervical spine; or,
forward flexion of the thoracolumbar spine 30 degrees or
less; or favorable ankylosis of the entire thoracolumbar
spine warrants a 40 percent disability rating. Unfavorable
ankylosis of the entire thoracolumbar spine warrants a 50
percent disability rating. Unfavorable ankylosis of the
entire spine warrants a 100 percent disability rating. 38
C.F.R. § 4.71a, Diagnostic Codes 5243, 5237 (2009)). Any
associated objective abnormalities such as bowel or bladder
impairment are to be rated separately under an appropriate
Diagnostic Code. See Note (1) of General Rating Formula.
Under the Formula for rating Intervertebral Disc Syndrome
based on Incapacitating Episodes, incapacitating episodes
having a total duration of at least 1 week, but less than 2
weeks during the past 12 months warrant a 10 percent
disability evaluation. Incapacitating episodes having a
total duration of at least two weeks but less than four weeks
during the past 12 months warrant a 20 percent disability
evaluation. Incapacitating episodes having a total duration
of at least four weeks but less than six weeks during the
past 12 months warrant a 40 percent disability evaluation.
Incapacitating episodes having a total duration of at least
six weeks during the past 12 months warrant a 60 percent
evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2009).
Note (1): For purposes of evaluations under 5243, an
incapacitating episode is a period of acute signs and
symptoms due to intervertebral disc syndrome that requires
bed rest prescribed by a physician and treatment by a
physician. "Chronic orthopedic and neurologic
manifestations" means orthopedic and neurologic signs and
symptoms resulting from intervertebral disc syndrome that are
present constantly, or nearly so. Note (2): If
intervertebral disc syndrome is present in more than one
spinal segment, provided that the effects in each spinal
segment are clearly distinct, evaluate each segment on the
basis of chronic orthopedic and neurologic manifestations or
incapacitating episodes, whichever method results in a higher
evaluation for that segment.
Based on a review of the evidence, the Board finds that a
rating in excess of 10 percent disabling is not warranted for
the Veteran's lumbar spine disability. His combined ranges
of motion, as well as his flexion measured in the April 2005,
May 2007 and December 2007 VA examinations, fall squarely in
the criteria for a 10 percent rating. This is because the
forward flexion of the thoracolumbar spine was greater than
60 degrees but not greater than 85 degrees (except where it
was 90 degrees once on the May 2007 examination) and the
combined range of motion of the thoracolumbar spine was
greater than 120 degrees but not greater than 235 degrees
(including factoring in pain at 15 degrees extension for the
May 2007 examination). Thus the evidence reflects that his
back disorder was still no more than 10 percent disabling
based on motion loss, even with consideration of pain. See
38 C.F.R. § 4.71a, Diagnostic Codes 5243; See also DeLuca; 38
C.F.R. §§ 4.7, 4.45 4.59 (2009). The Board notes that his
combined range of motion in the May 2007 VA examination would
have been noncompensable if pain were not factored in.
He also is not shown to meet the criteria for a 20 percent
rating under the General Formula based on muscle spasm or
guarding severe enough to result in an abnormal gait or
abnormal spinal contour such as scoliosis, reversed lordosis,
or abnormal kyphosis.
With the exception of a December 2006 pain assessment, which
did show some apparently temporary complaints of back pain
affecting his posture, the evidence including subsequent VA
and private treatment records and the aforementioned
examinations reveal that the Veteran's spine was not shown to
have any abnormal contour, his musculature was normal and
there was no evidence of guarding severe enough to affect his
gait, as he walked normally without assistive devices. His
range of motion repeatedly fell within the 10 percent
criteria.
Generally his complaints regarding his back are shown to be
pain, with some pain shown on motion in the May 2007
examination, but no fatigue on repetitive testing. The
December 2007 VA examination did note some complaints of easy
fatigability, lack of endurance and decrease in flexion which
reduced his motion to approximately 5 degrees, and some mild
spasm noted. However this fatigability, etc is not shown to
warrant an increase above the current 10 percent rating
currently in effect. Again his range of motion, even when
factoring in the loss of 5 degrees for each motion would
still fall within the 10 percent criteria as combined motion
would be 180 degrees and flexion would be 70 degrees. Thus
there is no basis for granting an increased rating based on
DeLuca; 38 C.F.R. §§ 4.7, 4.45 4.59 (2009).
As there is no evidence of ankylosis of the lumbar spine
shown, a higher rating on the basis of ankylosis is not for
consideration in this matter.
There is also no evidence of any incapacitating episodes in
any of the VA or private treatment records or VA examination
reports which would warrant a 20 percent disability
evaluation. Thus a higher rating based on incapacitating
episodes is not warranted.
In sum, the Board finds that the preponderance of the
evidence is against a rating in excess of 20 percent
disabling for the Veteran's lumbar spine condition based on
orthopedic complaints and/or incapacitating episodes.
Neurological Manifestations--Analysis
The Board now turns to whether there should be increased
ratings of the Veteran's associated radiculopathy of both
left and right legs, which were granted effective to the date
of the increased rating claim for the lumbar spine condition
in December 13, 2004. Such has been rated under the
provisions of 38 C.F.R. Part 4, Diagnostic Code 8520 as
analogous to impairment of the sciatic nerve. Under
Diagnostic Code 8520, pertaining to paralysis of the sciatic
nerve, mild incomplete paralysis warrants a 10 percent
disability rating, moderate incomplete paralysis warrants a
20 percent disability rating, moderately severe incomplete
paralysis warrants a 40 percent disability rating, and severe
incomplete paralysis with marked muscular atrophy warrants a
60 percent disability rating. An 80 percent disability
rating is warranted for complete paralysis, where the foot
dangles and drops, there is no active movement possible of
the muscles below the knee, and flexion of the knee is
weakened or (very rarely) lost. See 38 C.F.R. § 4.121a,
Diagnostic Code 8520 (2009).
Upon review of the evidence, the Board finds that the
neurological manifestations affecting the left and right legs
at one time or another, but mostly affecting the right leg
more severely, consist primarily of pain, tingling and
numbness.
The right leg, which is currently rated as 20 percent
disabling for moderate severe incomplete paralysis, is
repeatedly shown to be more symptomatic and with objective
findings to substantiate the Veteran's subjective complaints.
This includes slight weakness of the right leg with reduced
reflex of 1+ compared to the left which was 2+, noted on PT
consult in January 2005. Also shown were objective findings
of numbness on the right on the December 2007 VA neurological
examination which described the condition affecting the right
lower extremity to be of moderate severity. However the
evidence, including the VA and private medical records as
well as examination reports, fails to suggest that the
neurological manifestations affecting the right lower
extremity more closely resembles a moderately severe
incomplete paralysis.
While there is some objective evidence of sensory
abnormalities described above, this is not shown to be a
persistent condition, with the April 2005 and May 2007 VA
examination, as well as other VA and private records
described above are noted to show normal sensation on
testing. Nor was there atrophy shown in any of the records,
nor does the radiculopathy affecting the right lower
extremity result in a persistent gait abnormality or a need
to use assistive devices. While he did have a slight limp
noted on PT consult in January 2005, other records and
subsequent VA examination reports showed a normal gait.
These manifestations, described in detail above resemble no
more than a moderate incomplete paralysis and warrant no more
than a 20 percent evaluation for the right leg. In view of
this, the Board finds that the preponderance of the evidence
is against a rating in excess of 20 percent disabling for
radiculopathy affecting the right lower extremity.
In regards to the left leg, the Board notes that the
significant findings are limited to subjective complaints of
numbness, tingling and pain, which have been conceded by the
Veteran to be less severe than the right leg complaints.
However there are no clear objective findings of weakness,
atrophy or sensorineural deficits shown in the above
described treatment records or the repeated VA examinations.
In the absence of such objective findings to support his
subjective complaints, the Board finds that the left lower
extremities symptoms do not closely resemble those of a
moderate incomplete paralysis. In view of this, the Board
finds that the preponderance of the evidence is against a
rating in excess of 10 percent disabling for radiculopathy
affecting the left lower extremity.
Extraschedular Consideration
The RO also determined that referral to the Under Secretary
for Benefits or the Director of the Compensation and Pension
Service for an extraschedular rating was not warranted. Under
38 C.F.R § 3.321(b)(1), in exceptional cases where schedular
evaluations are found to be inadequate, consideration of an
extra-schedular evaluation commensurate with the average
earning capacity impairment due exclusively to the service-
connected disability or disabilities is made. The governing
norm in an exceptional case is a finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. See 38 C.F.R § 3.321(b)(1) (2009).
The Board has considered the provisions of 38 C.F.R. §
3.321(b)(1), but finds that no evidence that the Veteran's
service-connected lumbar spine disability with radiculopathy
affecting the left and right legs has caused marked
interference with employment beyond that contemplated by the
schedule for rating disabilities, necessitated frequent
periods of hospitalization, or otherwise renders impractical
the application of the regular schedular standards utilized
to evaluate the severity of this disability. The regular
schedular rating criteria in this case adequately compensates
the Veteran's symptoms from his orthopedic complaints,
including pain, restricted motion, and incapacitating
episodes, as well as the neurological complaints resulting
from this condition which affects both legs.
There is no evidence of frequent or lengthy periods of
hospitalization shown to be due to his lumbar spine disorder
with radiculopathy in the records, which show no such
hospitalizations for this condition. He is also not shown to
have marked interference with employment due to his lumbar
spine and radiculopathy condition. He is noted to work full
time and there is no functional impairment due to his back
condition and radiculopathy shown.
In the absence of such factors, the Board finds that the
requirements for referral for an extraschedular evaluation
for the Veteran's service- degenerative disc disease and
spondylolithesis of the lumbar spine with radiculopathy
affecting both lower extremities under the provisions of 38
C.F.R. § 3.321(b)(1) have not been met for any period.
Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown,
8 Vet. App. 218 (1995).
ORDER
A rating in excess of 10 percent disabling for degenerative
disc disease and spondylolithesis of the lumbar spine is
denied.
An initial rating in excess of 20 percent disabling for
radiculopathy of the right lower extremity is denied.
An initial rating in excess of 10 percent disabling for
radiculopathy of the right lower extremity is denied.
____________________________________________
J.W. FRANCIS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs